concurring.
I agree with the factual background set out in Parts I and III of the court’s opinion and with much of the discussion concerning corroboration in Part XI; I also agree with the brief discussion of caselaw contained in Part IX. Unlike the majority of the court, however, I would favor adopting a rule concerning admissibility of testimony by witnesses who have been hypnotized to enhance their memory. The issue is squarely presented in these two cases, a good factual record has been developed, and the issue is well briefed. An opinion determining the admissibility of hypnotically-enhanced testimony would, in my estimation, provide much-needed guidance to trial courts, to prosecutors and criminal defense attorneys, and to police officers charged with the responsibility of investigating criminal cases.
Upon consideration of the record in these cases and review of the literature discussing use of hypnosis as a tool for criminal investigation, it is apparent that virtually no agreement exists among hypnosis experts about the reliability of hypnotically-enhanced memory. Furthermore, among those experts who agree that certain precautions can provide assurance of the accuracy and reliability of hypnotically-enhanced memory, few agree as to the exact precautions necessary to protect against suggestion by the interviewer and eonfabu-lation by the witness. Significantly, virtually all experts agree that inappropriate use of hypnosis may result in substantial distortion of memory and, consequently, may lead to a significant risk of unreliability.
The widespread disagreement concerning reliability of hypnotically-enhanced memory, coupled with the general consensus that there is a significant danger stemming from abuse of hypnosis, leads me to conclude that testimony concerning facts that a witness first recalled while hypnotized must be excluded from evidence unless the facts are independently verified or corroborated. Similarly, unverified or uncorroborated evidence obtained after a hypnotic interview should be excluded when it is solely the product of statements made by a witness for the first time while under hypnosis. Finally, I believe that the hypnotic interview itself cannot be used as evidence to prove the substance of statements made therein. I think this conclusion is mandated whether reliance is placed on the standard established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), or on the balancing of probative value against prejudicial impact prescribed by Evidence Rule 403.
Since there is no scientific consensus concerning the reliability of hypnotically-enhanced recollection, testimony about events remembered by a witness for the first time while hypnotized and evidence derived exclusively from facts remembered under hypnosis are of little probative value if not independently verified or corroborated. On the other hand, reliance on hypnotically-enhanced testimony at trial poses a substantial threat of jury confusion and distraction. *824Some jurors, impressed by the “aura of mystery” surrounding hypnosis, might tend to give unquestioning credence to matters recalled by a witness under hypnosis. Other jurors, however, predisposed to scepti-cism about hypnosis, might tend to discredit entirely the testimony of a witness who has been subjected to police hypnosis. Because of the widely divergent views held by experts in the field of hypnosis, jurors in individual cases would inevitably be presented with conflicting testimony about the accuracy and reliability of hypnotically-enhanced memory. Since no scientific consensus would allow a conclusion that any particular view is “correct” or “incorrect,” in the absence of independent verification or corroboration in a given case, jurors would be afforded no rational basis for determining the reliability of hypnotically-enhanced testimony. In individual cases, juries would inevitably determine the reliability of hypnotically-enhanced testimony based either on their own bias for or against hypnosis or on the bias of the most persuasive expert to testify during the trial.
At least until a better understanding of hypnosis and the relationship of hypnosis to memory is achieved, and at least until there is a general scientific consensus on the issues, testimony as to uncorroborated facts based entirely on hypnotically-enhanced memory must, in my view, be deemed more prejudicial than probative and excluded from evidence.
However, a per se rule precluding a previously hypnotized witness from giving any testimony concerning matters that were discussed under hypnosis would be equally unjustified. Such a rule necessarily presupposes the validity of the view that a witness who has been subjected to a pretrial hypnotic interview is irreversibly transformed and rendered inaccessible to effective cross-examination at trial. While this view is convincingly advocated by a number of experts, it is by no means generally accepted; rather, as the court’s opinion in this case correctly notes, this view is held by a minority of experts. The view is only one of numerous differing views in an area of scientific knowledge where no general agreement as to basic principles can be found. Consequently, per se exclusion of the testimony by previously hypnotized witnesses is unjustified for precisely the same reasons that require exclusion of testimony based solely on hypnotically-enhanced memory.
The rule that I would adopt is, at best, an unhappy compromise made necessary by the lack of objective information concerning hypnotically-enhanced memory. Admittedly, this rule will be difficult to apply in certain cases, since it will not always be clear if evidence is exclusively the product of a hypnotic interview. In the present cases, it is not immediately apparent whether or to what extent the ability of the victims to identify Grumbles and Contreras should be attributed to enhanced memory resulting from hypnosis. I believe this question should be resolved by taking the same general approach used in determining the admissibility of identifications made by witnesses during unduly suggestive lineups. See Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); Howe v. State, 611 P.2d 16, 17-19 (Alaska 1980). The inquiry must focus on reliability of the information. If circumstances indicate that evidence is based only partially on hypnotically-enhanced memory and that it is substantially reliable, then any link that the evidence might have to hypnosis should not preclude its admission. Both corroborating facts and facts tending to establish that the memory of the witness is independent of hypnosis may be considered in gauging reliability. Inquiry must also be directed at the possibility of hypnotic suggestion by the interviewer. The ultimate determination of reliability must be based on the totality of the circumstances in each case.
This approach will, I believe, allow continued use of hypnotism as an investigative tool. If a hypnotic interview reveals information leading to the discovery of evidence that can be independently tied to the crime. I can conceive of no reason for excluding such evidence. Similarly, I perceive no need to preclude the testimony of a previ*825ously hypnotized witness concerning such evidence simply because the evidence was discussed under hypnosis.1 Thus, for example, when a witness is questioned under hypnosis about the physical characteristics of the person who committed a crime, there is no need to exclude evidence of a subsequent identification unless the reliability of the identification is uncorroborated and depends only on the information revealed in the hypnotic interview, or unless a substantial likelihood of suggestion during the hypnotic interview is shown.
As the majority opinion correctly notes, in the two cases under consideration there is ample basis to conclude that the identifications of Grumbles and Contreras were reliable and not solely the product of police hypnosis. Similarly, there is nothing in these cases to indicate the possibility of hypnotic suggestion as a factor influencing the identification, since, at the time of the hypnotic interviews, neither Grumbles nor Contreras were suspects. I would therefore reverse the court’s order in Contreras and affirm the court’s order in Grumbles.2 Since the majority reaches essentially the same conclusion, I concur in the decision of the court.
. I believe that full cross-examination and expert testimony dealing with the potential effects of hypnosis in these two cases must be allowed. While reliable evidence should be admitted even if it deals with matters first disclosed under hypnosis, cross-examination and expert testimony relating to the hypnotic interviews must be permitted to assure the defendants a full opportunity to establish to the jury the possibility that the testimony of the witnesses might to some extent be influenced by their hypnotic interviews. To the extent, however, that testimony of witnesses is unrelated to matters discussed while under hypnosis, cross-examination or expert testimony concerning the hypnotic interviews would, of course, be irrelevant. I do not read the majority opinion to differ significantly from my conclusions in this regard.
. In' each case, however, I would preclude the state from admitting into evidence the actual statements that the victims made while hypnotized. Exclusion of this evidence would be called for under the rule of admissibility that I would adopt. I would not, however, restrict the defense from relying on statements made during hypnosis for the purpose of impeachment by prior inconsistent statement. In the event that the defendants raised the issue of hypnosis, either on cross-examination of the victims or as part of their defense, I think the state would be entitled to rely on the substance of the hypnotic interviews in rebuttal.